Jury Duty in the Social Media Era

Trial lawyers have always tried to make sure the jurors assigned to their cases are likely to find in favor of their clients and against their opponents. Today, however, social media services such as Facebook, Google+ and Twitter have added complexity and new dynamics -- not just to the jury selection process but also to the behaviors that are permitted in court.

Even before social media existed, lawyers would often investigate to learn as much as possible about each potential juror. Their primary goal, of course, was to eliminate potential jurors who may find against their clients.

With the advent of social media, however, lawyers can now search Facebook, LinkedIn, Twitter and more to learn about prospective jurors.

That, in turn, opens up a whole new world of possibilities -- and numerous potential gray areas.

Tell Me About Potential Juror No. 3

Most courts require jurors to provide a great deal of information before they ever show up in the courtroom. For instance, in Dallas County, Texas, the Juror Questionnaire requires that jurors provide the following:

home address and length of time in the county;

employer and length of time at that job;

marital status;

name of spouse, spouse's employer and time at that job;

phone numbers: home, business and cell;

race;

religion;

birthplace; and

service on juries in the past, both civil and criminal.

Obviously, these details tell lawyers a great deal about economic status, religion and potential biases. Given enough time and energy, however, lawyers can search further on social media and learn even more details including hobbies, friends and social activities.

Googling the Candidates

Lawyers' use of social media during jury selection has already raised legal issues. For example, in the 2010 New Jersey case of
Carino v. Muenzen, a judge ruled that a lawyer could "Google" a juror while asking questions in the jury selection phase:

There was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of "fairness" or maintaining "a level playing field." The "playing field" was, in fact, already "level" because internet access was open to both counsel, even if only one of them chose to utilize it.

Attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror as a result of the research. Attorneys may not research jurors if the result of the research is that the juror will receive a communication. If an attorney unknowingly or inadvertently causes a communication with a juror, such conduct may run afoul of the Rules of Professional Conduct.

The attorney must not use deception to gain access to a juror's website or to obtain information, and third parties working for the benefit of or on behalf of an attorney must comport with all the same restrictions as the attorney. [emphasis added]

Should a lawyer learn of juror misconduct through otherwise permissible research of a juror's social media activities, the lawyer must reveal the improper conduct to the court.

By asserting that an attorney may not use "deception" in this process, the New York City Bar seemingly prohibits lawyers from camouflaging their identities using webmail. Stay tuned to see how New York courts interpret this prohibition and whether and how other courts around the country address this concept.

No Independent Research

Generally, courts around the United States specifically prohibit jurors from conducting their own research using social media. This is based on the longtime legal principal that jurors must rely solely on witness testimony and documents identified by witnesses in the courtroom. That is why jurors are instructed not to go the scene of an accident or study a particular fact, for example.

You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, or through any blog or website, including Facebook, Google+, Myspace, LinkedIn or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here.

I expect you will inform me as soon as you become aware of another juror's violation of these instructions. A juror who violates these restrictions jeopardizes the fairness of these proceedings and a mistrial could result, which would require the entire trial process to start over.

Notwithstanding this direct instruction, judges have no way of knowing whether jurors violate this ban, according to a Law.com
report.

Jail Time for Texting

On April 16, 2013, Marion County, Ore., Judge Dennis Graves sentenced 26-year-old Benjamin Kohler to jail for two days for contempt for texting while a witness was testifying about the armed robbery defendant on trial.

Kohler was caught texting when the courtroom lights were dimmed to allow a witness to show a video interview with the defendant, according to a Wiredreport. With the lights dimmed, the glow from Kohler's cell phone was reportedly apparent, so the judge immediately dismissed all the jurors from the courtroom except Kohler, whom the judge declared in contempt.

Included in the resulting court report was Judge Graves' courtroom statement about Kohler, including his message to other jurors to pay attention:

The duty to serve as a juror must be taken very seriously. Every juror has the responsibility to devote his entire attention to the witnesses and evidence being presented. In this case, Mr. Kohler failed to meet his obligations and failed to honor the direction of this court. My hope is that he will use his time in jail to reflect upon his behavior.

The content of Kohler's texting was not made public, since it was likely irrelevant; the Judge's admonishment was only about paying attention and not about texting regarding the defendant or facts in the trial. Ultimately, Kohler only spent only one day in jail for contempt. The trial continued, and the jury -- excluding Kohler -- issued a verdict convicting the defendant.

A Conviction Overturned

However, if a juror is reprimanded and continues to violate a judge's orders, the verdict may be impacted. In the 2011 case of
Dimas-Martinez v. State, for example, the Supreme Court of Arkansas overturned a murder conviction because a juror tweeted after being reprimanded by the trial judge.

Given the prevalence of texting, we will surely see more stories about its occurrence in court. It seems that many social media users have difficulty going offline in business meetings and social events, so if they are bored while serving as a juror during a trial, staying off social media may be too much to endure.

Clearly, social media are affecting jury service. Perhaps the courts will have to revise jury rules accordingly.

E-Commerce Times columnist Peter S. Vogel is a partner at
Gardere Wynne Sewell, where he is Chair of the Internet, eCommerce & Technology Team. Peter tries lawsuits and negotiations contract dealing with IT and the Internet. Before practicing law, he was a mainframe programmer and received a Masters in computer science. His blog covers
IT and Internet topics.